To the above-named Defendants: Y O U A R E H E R E B Y S U M M O N E D to answer the complaint in this action and to serve a copy of your answer on the plaintiffs' attorneys within twenty (20) days after the service of the summons, exclusive of the day of service (or within thirty (30) days after the service is complete i f the summons is not personally delivered to you within the State of N e w York); and i n case of your failure to appear or answer, judgment w i l l be taken against you by default for the relief demanded i n the complaint. Dated: Latham, N e w York February 19, 2013 RICHARD E. CASAGRANDE Attorney for Plaintiffs 800 Troy-Schenectady Road Latham, N e w Y o r k 12110 (518)213-6000

Plaintiffs N e w Y o r k State United Teachers, by its president Richard C . Iannuzzi, N a o m i Avery, Seth Cohen, Timothy Michael Ehlers, Kathleen Tobin Flusser, Michael L i l l i s , Robert Pearl, individually and on behalf of his children Kyleigh, Micaela, A v a and N o l a n Pearl, who are pupils i n a N e w Y o r k school district, Brian Pickford, Hilary Strong individually and on behalf of her child K e v i n Strong, who is a pupil i n a'New Y o r k school district, by their attorney, Richard E . Casagrande, Esq. (Matthew E . Bergeron, Esq., Laura R. Hallar, Esq., and Robert T. Reilly, Esq., o f Counsel), for their complaint against defendants respectfully allege, upon information and belief, as follows:

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PRELIMINARY STATEMENT 1. Plaintiffs are school district voters, residents, and taxpayers, as w e l l as parents of

children who are N e w Y o r k State public school district students. Plaintiffs support - and their children would benefit from - enhanced educational funding for their school districts. Plaintiff N Y S U T represents over 600,000 in-service and retired public and private employees, including more than 98% o f N e w Y o r k ' s public school teachers and a majority o f other public school employees, including guidance counselors, nurses, teaching assistants, aides, school secretaries, and bus drivers, among others. The overwhelming majority o f N Y S U T members are state residents and taxpayers, and many have children who attend N e w Y o r k ' s public schools. 2. Plaintiffs bring this declaratory j udgment action seeking to declare unconstitutional

the so-called "tax cap" legislation enacted i n 2011, as it applies to public school districts. 3. The tax cap places an undemocratic and unconstitutional supermaj ority requirement

on votes for school budgets seeking to increase the school funding tax levy by more that 2% or the rate o f inflation, whichever is less. The apparent purpose and practical effect o f the tax cap is to limit the ability o f school boards and school district voters to increase school funding beyond that permitted under the tax cap, and to deter efforts to exceed the tax cap. 4. The tax cap has the effect of perpetuating and widening the existing gross education

funding inequities between school districts. A s a result, the tax cap has a particularly negative impact on the State's poor and minority school children, denying them the educational opportunities provided by other, wealthier districts, and denying all local school boards and their voters ofthe right to close existing funding and achievement gaps, or to provide enhanced educational opportunities to school children.

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5.

The tax cap deprives or arbitrarily and impermissibly interferes with the individual

and the equal protection provisions of the State and United States Constitution, the tax cap deprives school children o f equal educational opportunity by perpetuating and expanding the gross inequalities i n funding among school districts. This is because the tax cap, absent a supermajority vote o f a school district's qualified voters, prohibits a school board f r o m increasing a tax levy by more than the rate of inflation or 2%, whichever is less. This disproportionately and negatively impacts on the ability o f lower wealth districts to provide educational opportunity to their school children. Second, the tax cap deprives all school districts and their voters the right to provide equal or enhanced educational services and facilities to school children, by impermissibly and arbitrarily capping the right o f school districts and voters, absent a supermajority vote, to increase a tax levy by more than the rate of inflation or 2%, whichever is less. Third, the tax cap impermissibly impairs the plaintiffs' right, under the Education Article, to participate i n the governance and spending decisions o f their school district, by diminishing local control over such decisions. Fourth, the tax cap deprives plaintiffs o f their right to equal protection o f law as compared with voters, residents and taxpayers o f other, non-school district local governments, who are not subject to the tax cap's supermajorities and ballot notice provisions. Fifth, the tax cap unconstitutionally interferes with plaintiffs' fundamental voting rights, i n violation of the principle o f one-person, one-vote, because it gives disproportionate voting power to voters who oppose a proposal to exceed the tax cap. Sixth, the tax cap deprives plaintiffs o f their right to equal protection of law based on their views, because voters who oppose a proposal to exceed the tax cap are given disproportionate voting power over

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voters who favor such a proposal. Seventh, the tax cap violates plaintiffs' rights to free expression because it discriminates against voters based on their political viewpoint. 7. Plaintiffs in this litigation do not seek a judicially-ordered increase i n the tax levy of

any school district, nor do plaintiffs seek a court-ordered increase i n State education aid. Plaintiffs also do not challenge the right of wealthier school districts or voters to provide enhanced educational services and facilities to school children at the level they see fit. Rather, the essence o f plaintiffs' claim is that the State cannot legally justify an education funding system that permits gross disparities i n district funding and educational opportunities for school children, and then impose an arbitrary, across-the-board percentage cap on local spending. While, on its face, the tax cap gives the appearance o f equality, i n effect the tax cap locks i n existing inequalities, and has a disproportionate, negative impact on the ability of the lower wealth districts and their voters to provide educational opportunity to school children. 8. Plaintiffs also do not seek to establish any specific, district-wide failure to provide

a sound basic education. While the tax cap impedes school districts' ability to provide a sound basic education, and while the tax cap may have already led to such failures, plaintiffs i n this litigation assert only that the tax cap, on its face and as applied, is unconstitutional. 9. In addition to seeking a declaratory judgment declaring the tax cap unconstitutional,

plaintiffs seek further and consequential relief, including a permanent injunction o f the application of the tax cap to education funding. JURISDICTION 10. The court has jurisdiction to grant a declaratory judgment and further and

consequential relief pursuant to C P L R §3001 and §3017(b).

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11.

The court has jurisdiction to grant plaintiffs relief to remedy defendants' violations

o f t h e United States Constitution pursuant to 42 U . S . C . §§1983 and 1988. The tax cap is a N e w Y o r k state law, and all o f t h e actions ofthe defendants to enact, implement and enforce the tax cap were and are taken under color of state law. VENUE 12. Venue for this action is set i n Albany County pursuant to Article 5 o f the C P L R , as

defendants' principal places of business are i n Albany County. PLAINTIFFS Naomi 13. Avery N a o m i Avery is a 20 year resident of, taxpayer within, and parent o f a child who is

a pupil i n the Elmira City School District. 14. 15. Seth 16. M s . Avery is a fourth grade teacher employed by the E l m i r a City School District. M s . Avery voted i n favor of the Elmira school budget on M a y 15, 2012. Cohen Seth Cohen is a 27 year resident of, taxpayer within, and parent of one child who is

Timothy Ehlers is a seven year resident of, taxpayer within, and parent o f one child

who is a pupil i n the Three Village Central School District. 22. for 10 years. 23. Michael 24. M r . Ehlers voted i n favor o f t h e Three Village school budget on M a y 15, 2012. Lillis Michael L i l l i s is an 18 year resident of, taxpayer within, and parent of one child who M r . Ehlers is a tenured American history teacher who has been teaching in the District

is a pupil i n the N e w Paltz Central School District. 25. Robert 26. M r . L i l l i s voted i n favor of the N e w Paltz school budget on M a y 15,2012. Pearl Robert Pearl is a 17 year resident of the Brookhaven-Comsewogue Union Free School

District, taxpayer within, and parent of four children who are pupils in the Brookhaven-Comsewogue U n i o n Free School District. 27. M r . Pearl is a tenured special education teacher and has been employed by the

Brookhaven-Comsewogue Union Free School District for nearly 10 years. 28. M r . Pearl is a vice president o f the Port Jefferson Station Teachers' Association,

N Y S U T L o c a l 23040, and has held this position for two years. 29. M r . Pearl is the parent o f four children, K y l e i g h Pearl, Micaela Pearl, A v a Pearl and

N o l a n Pearl, 16, 15, 11 and 5 years old respectively, who are pupils in Brookhaven-Comsewogue

w i l l be a pupil in the Three Village Central School District i n the 2013-2014 school year. 32. 33. years. 34. Hilary 3 5. M r . Pickford is a member and Treasurer o f t h e Three Village Teachers Association. Strong Hilary Strong is a 23 year resident of, taxpayer within, and parent of two children who M r . Pickford voted i n favor of the Three Village school budget on M a y 15, 2012. M r . Pickford is a tenured music teacher who has been teaching i n the District for 11

are pupils i n the Elmira City School District. 36. 37. M s . Strong is the parent and has custody o f E l m i r a student K e v i n Strong. M s . Strong voted i n favor of the Elmira school budget on M a y 15, 2012. Teachers

labor organization under state and federal law, and is the statewide affiliate for more than 1,260 affiliated local unions. These local unions represent over 600,000 public and private sector

employees and retirees, including employees of school districts, colleges and universities, hospitals, centers for the developmentally disabled, libraries, and local governments. The majority of N Y S U T

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members, however, are public school teachers and school-related professionals, including secretaries, nurses, custodians and bus drivers, who are in-service or retired employees of public school districts in N e w York. The majority of N Y S U T members live i n N e w Y o r k state and are qualified voters in their school districts, and tens of thousands o f them have children who attend N e w Y o r k ' s public schools. The constitutional rights o f these members are infringed by the tax cap. The president of N Y S U T is Richard C. Iannuzzi. M r . Iannuzzi is a resident of and taxpayer in the Smithtown Central School District. DEFENDANTS 39. Defendant State of N e w Y o r k is a state organized and maintained pursuant the N e w

Y o r k Constitution. Its principal office is located at the State Capitol, Albany, N e w Y o r k 12224. The legislative power in N e w Y o r k is vested i n the senate and the assembly, each o f which chooses its own officers. The executive power i n N e w Y o r k is vested i n the governor. B i l l s are enacted by the Legislature and are signed into law by the governor. 40. Defendant Andrew M . Cuomo is the Governor of the State of N e w York; as such, he

is the head of the executive branch of N e w Y o r k state government, and he has the powers and duties set forth in Article I V o f the N e w Y o r k Constitution. 41. Defendant Thomas P. D i N a p o l i is the Comptroller o f t h e State of N e w York, and as

such he has the powers and duties set forth i n Article V o f the N e w Y o r k Constitution, the State Finance L a w , the Retirement and Social Security Law, and various provisions o f other N e w York laws, including the tax cap. 42. Defendant John B . K i n g , Jr. is the Commissioner o f t h e N e w Y o r k State Education

Department and as such he has the powers and duties set forth i n Article 7 of the Education L a w and

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various other provisions of N e w Y o r k law, including the tax cap. 43. The defendants are sued i n only their official capacities. FACTS The Tax Cap 44. The "tax cap" refers to S. 5856/A. 8518, passed by the Legislature and signed into law

by the governor as chapter 97 o f the laws o f 2011. [Education L a w §2023-a.] 45. The tax cap imposes a limitation on the tax school districts and other non-school

district local governments can levy on the real properly subject to tax within their borders. 46. Generally, under the tax cap's formula, a school district or a non-school district local

government cannot enact a budget that increases the levy on properly taxes by more than approximately two percent (2%) per year or rate o f inflation based on the Consumer Price Index (CPI), whichever is less. [Education L a w §2023-a(l) and (2)(a).] 47. The tax cap, however, affects school districts differently from how it affects other

non-school district local governments. This action challenges the tax cap only as it applies to school districts. 48. Under Education L a w §2023-a(6), a non-school district local government can adopt

a budget that increases the tax levy i n excess o f the tax cap i f it authorizes an override of the tax cap for that year. It can achieve an override by enacting a local law with a vote of 60% ofthe total voting power o f its governing body. 49. The voting power of governing bodies of non-school district local governments vary.

A town board, for example, could be comprised of as few as three members - - a town supervisor and two town councilmen, two o f whom constituting both a simple majority and a 60% supermajority.

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Overwhelmingly, the most common f o r m of town board in N e w Y o r k is a board with five members, consisting o f a town supervisor and four town councilmen, three o f whom constitute both a simple majority and a 60% supermajority. Villages are governed by a mayor and four trustees, three of whom constitute both a simple majority and a 60% supermajority. Some cities i n N e w York, such as Auburn, have a governing body comprised o f a mayor and four councilmen, three o f whom constitute both a simple majority and a 60% supermajority. 50. Thus, i n N e w Y o r k the majority of towns and villages, and some cities, can adopt a

budget exceeding the tax cap with a vote that, while satisfying the supermajority requirement mathematically, is nothing more than a simple majority. Thus, the voters o f most non-school district local governments, acting through their democratically elected representatives, can adopt a budget exceeding the tax cap with a simple majority vote. 51. Additionally, when a school board proposes a budget that would require a tax levy

exceeding the tax cap, the ballot for such budget must include this statement: "Adoption of this budget requires a tax levy increase of which exceeds the statutory tax levy increase limit of for this school year and therefore exceeds the state tax cap and must be approved by sixty percent of the qualified voters present and voting." [Education L a w §2023-a(6)(b).] 52. Non-school district local governments need not submit their budgets to their qualified

voters, nor do their proposed budgets have to include any statement about the tax cap. 5 3. Prior to the effective date of the tax cap, neither non-school district local governments

nor school districts were required to obtain more than a simple majority o f t h e qualified governing board or voters voting on the budget to adopt a budget. 54. Under the tax cap, i f a school board proposes a budget and it fails to obtain simple

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majority approval (or the sixty percent supermajority approval in the case o f a budget that exceeds the tax cap), the school district has the option of resubmitting the same or a revised budget for a second vote, or it may adopt a budget with a tax levy no greater than the tax levy that was levied for the prior school year. [Education L a w §2023-a(7).] 55. Under the tax cap, i f the school district resubmits the budget and it again fails to

obtain a simple majority, or 60% supermajority approval i n the case o f a budget proposal exceeding the tap cap, the school district then must adopt a budget with a tax levy no greater than the tax levy that was levied for the prior school year. [Education L a w §2023-a(8).] 56. This effectively imposes adverse consequences for a school board which proposes,

but fails to pass by 60%, a budget that exceeds the tax cap. When a school board proposes a budget that would exceed the tax cap and that budget ultimately fails twice, the school board is prohibited f r o m any increase in the tax levy. 57. consequences. 58. In M a y 2012, the first year the tax cap applied to school district budgets, only fiftyOther, non-school district local governments are not subject to such adverse

three of the State's 678 school districts submitted budgets to their voters that proposed a tax levy above the tax cap for the 2012-2013 school year. 59. The fact that less than eight percent (8%) o f the State's school districts sought to

exceed the tax cap demonstrates the deterrent effect of the supermajority requirement, the statutory notice required by the tax cap law, and the adverse funding consequences that can occur where a proposed budget is defeated. 60. N o t only does the tax cap place unique, onerous conditions on school districts, but

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the tax cap also changed the manner i n which school district contingency budgets are adopted. 61. Prior to the tax cap, a school board was itself empowered to adopt a contingency

budget when the voters defeated a budget, and such contingency budget could result i n a tax levy increase. 62. The tax cap's limits on local control o f school funding comes at a time when there

have been substantial cuts i n state school aid, leaving many school districts starved o f adequate funding and on the verge o f educational and financial insolvency, and undermining their ability to provide school children with a sound basic education. Over the past several years, state funding for education has been as follows: YEAR 2008-2009 2009-2010 2010-2011 2011-2012 2012-2013 Educational 63. Opportunity, Governance $21.4 $21.6 520.1 519.6 $20.1 and Finance in New York FUNDING IN BILLIONS

provide for the maintenance and support o f a system o f free common schools, wherein a l l the children o f this state may be educated." 64. Under Article X I §1 o f the N e w Y o r k State Constitution, as it has been interpreted

by the Court of Appeals, the State is obligated to ensure the availability o f a "sound basic education" to all its children. 65. A "sound basic education" is a "meaningful high school education" that prepares

children to function productively as citizens and civic participants.

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66.

The opportunity to receive a sound basic education so as to function as a productive

citizen should be deemed a fundamental right under Article X I § 1. 67. In order to provide a sound basic education, certain educational "inputs" must be

furnished, including qualified and competent teachers; schools and classrooms which provide enough light, space, heat and air, and reasonable class sizes to permit children to learn; and appropriate instrumentalities o f learning, including classroom supplies, textbooks, libraries and computers. 68. The educational opportunities o f school children are directly related to these

educational inputs, which require adequate funding. 69. To comply with its obligation to provide a sound basic education to school children,

N e w Y o r k has long maintained a common school system. 70. Throughout its history N e w Y o r k financed education with a system resting on State

aid supplemented by local taxation. N e w York established a statewide system o f support for public schools i n 1795. This state aid was augmented by a local tax. 71. 72. In 1805 the Legislature set up a fund for the support o f common schools. In 1812 the Legislature authorized the creation o f a statewide system o f common

school districts. 73. The Legislature vested control o f those common school districts i n elected district

trustees, inspectors, or town school commissioners. 74. 75. A s part of its 1812 legislation the Legislature also created a common school fund. The State distributed money from the common school fund to the common school

districts, which was matched by a properly tax, with additional funds raised by tuition.

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76.

The 1812 Common School A c t shaped the future o f public education in N e w Y o r k

by establishing that: (1) common schools are a state function under state control; (2) funding of public schools is a joint state-local responsibility; and (3) the school district is the primary administrative unit for public education. 77. 1894. 78. In 1894, to address those areas ofthe state where common schools were not adequate, This system of using the common school fund remained i n place f r o m 1812 through

the state amended its Constitution to include the Education Article, as Article I X § 1. This provision was renumbered as Article X I §1 during the 1938 Constitutional Convention, without any language change. 79. The right o f school boards and voters i n each school district to make their own

decisions with regard to that district's local share of school funding, which it raises through property taxes, is enshrined i n and protected by Article X I § 1 . This right is known as "local control." 80. This right gives local school boards and their voters the final say with regard to

providing school children educational opportunities, services and facilities beyond those which are funded by the State. 81. With the exception o f funding for the so-called "big f i v e " districts (New Y o r k City,

Yonkers, Syracuse, Rochester, and Buffalo), funding for each o f the public school districts i n N e w Y o r k is comprised o f two major elements: funding from the state itself and funding based on taxes levied directly by a school district based on the value o f taxable property within that district. The federal government also contributes, albeit for most districts Federal aid is a relatively small funding component.

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82.

Although state aid is wealth adjusted, this adjustment does not make up for the large

variation i n local wealth levels. A s a result, low wealth school districts continue to spend far less per student than high wealth communities. Local 83. Control Given the substantial local control over school district finance enshrined i n the state

L o c a l Effort in N e w Y o r k State School Districts"), the willingness and ability to raise funds locally to support education is essential i n assuring that all children have the resources needed to achieve high academic standards. 87. According to this analysis, diminution of local tax effort i n high need school districts

poses a significant concern, particularly i f the local tax effort is already inadequate. 88. Local control of supplemental school funding is the only rational basis that N e w Y o r k

courts have identified for upholding the significant inequalities i n the State's education financing system.

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The Decline 89.

in State Education

Funding and Its Impact

F o r many years, the state's share of school funding, on average across all districts,

typically ran between 4 1 % and 47%. 90. A s o f the 2011-2012 school year, the state's average share o f funding dropped to

approximately 39.7%, the lowest percentage since the 1992-1993 school year. 91. This average includes School Tax Relief ( S T A R ) funding. If S T A R r e l i e f is omitted,

the 2011 -12 State funding share was approximately 34.1 %, the lowest State funding level since the 1948-49 school year. 92. Between 2008-2009 and 2011-2012, the total aid provided by the state to school

districts declined by $1.86 billion dollars, while during that same time period student enrollment i n those districts remained virtually unchanged. 93. This decline i n state funding occurred despite the Legislature's commitment, i n

Foundation Phase-in A i d for schools, o f $7 billion, by the 2010-2011 school year. 95. The Legislature failed to meet that mark. A s of the 2012-2013 school year, the state

has fallen short o f its commitment by approximately $5.4 billion. 96. Further, the shortfall does not account for the additional "gap elimination adjustment"

funding reductions, made permanent i n 2011. 97. The Gap Elimination Adjustment ( G E A ) , first enacted by the Legislature i n 2009 and

made permanent in 2011, seeks to close the gap between the budgeted State expenditures and

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revenues available to support them. In 2009-10, the $1.5 billion Deficit Reduction Assessment ( D R A ) was offset through the use of federal stimulus funds. However, i n 2010-11 the G E A reduced State aid to school districts by $2.1 billion. While this reduction was partially offset by the

availability o f federal stimulus funds, school district losses eroded the gains made through the Foundation A i d phase-in. According to the N e w Y o r k State Board o f Regents, the 2011-12 G E A reduced aid by $2.6 billion, i n a manner that imposed the largest per pupil spending cuts on high need and average need districts. These cuts to high and average need districts are being exacerbated by the tax cap. 98. The decline i n State education funding is such that defendant Commissioner of

Education has expressed publicly his concern that some o f the State's school districts w i l l face "educational insolvency" i n the near future. 99. 100. M a n y school districts may also be on the verge o f actual financial insolvency. The areas i n which public schools can make former spending cuts without seriously

The recent reduction and current stagnation in school funding has a disparate impact

on certain school districts. While funding cuts hurt all districts, they affect some districts more adversely than others, depending upon the district's wealth. 102. In general, because the highest spending districts are the property wealthiest districts,

they exert the least tax effort. Communities that desire a high level of educational services, but do not have a large tax base, must bear a disproportionately heavy tax burden i n order to provide those

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services. In addition, school districts serving concentrations o f children from poverty backgrounds have a greater educational burden to bear, resulting i n a greater need to fund programs that provide extra time and help to educate students. The tax cap makes it much harder for poor districts to raise the funds they need to provide the desired educational opportunity to schoolchildren, but leaves wealthier districts, which have more substantial tax bases, i n a relatively better position to provide funding. 103. The State Education Department, the Division of the Budget and other state agencies

use the "combined wealth ratio" ( " C W R " ) to compare the relative wealth o f school districts. The C W R is a measure of relative wealth, indexing each district against the statewide average on a combination o f two factors, property wealth per pupil and income wealth per pupil. The state average C W R is defined as being equivalent to 1.0. Districts with a ratio greater than 1.0 are wealthier than the state average, while districts with a ratio of less than 1.0 have below average wealth. 104. A s o f 2010-2011, the most recent school year for which complete data is available,

the lowest decile o f school districts i n the state, or the least wealthy, have C W R values ranging f r o m .147 to .358. Put another way, the property i n the poorest district has 14.7% o f the value o f t h e average district. The highest decile of districts, or the most wealthy, have C W R values ranging f r o m 2.18 to 36.25, meaning that the property i n the wealthiest district is valued at 36.25% times more than average district. 105. In 2010-2011, the average amount spent per pupil by districts in the lowest decile was

$ 18,772. In contrast, the districts i n the highest decile spent 50% more on average, or $28,200 per student.

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106.

The stark disparity i n funding between wealthy and non-wealthy districts is also

illustrated by comparing districts according to enrollment and total expenditures. For example, i n 2010-2011, the Salmon River Central School District-the least wealthy district-had an enrollment of 1471 and spent $22,535 per student. This is contrasted with the Southhampton Union Free School District, which had an enrollment o f 1573 and spent $35,582 per student. Next, the Indian River Central School District had an enrollment of 4012 and spent $ 16,93 5 per student, while the Scarsdale Union Free School District had an enrollment of 4724 and spent $27,219 per student. The

Friendship Central School District had an enrollment o f 424 and spent $21,984 per student, while the Montauk U n i o n Free School District, with an enrollment o f 464, spent $37,507 per student. Finally, the Whitesville Central School District had an enrollment of283 students and spent $23,025, while the Shelter Island U n i o n Free School District had 268 students and spent $33,944 per student. 107. In terms o f total spending, the comparisons are equally stark. For example, with a

budget o f $67,941,270 i n 2010-2011, the Indian River district was able to spend only $16,935 per student, while the East Hampton U n i o n Free School District had a total budget o f $61,095,744 and spent $34,972 per student. In the Friendship Central School District, total spending was $9,321,659, or $21,985 per student, while the Bridgehampton Union Free School District spent $9,739,268, or $66,707 per student. The Brookfield Central School District spent $5,260,869, or $20,712 per student, while the Fire Island Union Free School District had a total budget o f $4,476,987, and spent $93,271 per student. Finally, the Hornell Central School District spent a total o f $31,043,843, or $15,839 per student, while the Sag Harbor Union Free School District had a total budget o f $30,337,385, and spent $32,137 per student.

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The Resulting Funding 108.

Gap According

to Poverty

The gap i n State funding between district and the corresponding inability to raise

revenue locally is illustrated by free and reduced lunch program ( F R P L ) rates. According to projected data for the 2012-13 school year, the schools i n the decile with the highest F R P L percentage - which includes the Elmira School District with 61 % eligibility - were able to raise only an additional $ 161 in taxes per student, while the decile of school districts with the lowest F R P L rate were able to raise $677 more per student. The Resulting Funding 109. Gap According to Graduation Rate

A s schools endeavor to increase graduation rates, they are being forced to do so with

stagnant or reduced funding from the State and virtually no ability to bridge that gap locally. In 2012-13, the school districts i n the decile with the lowest graduation rates, which includes Elmira School District at 63%, were able to increase local taxes by an average of only $5 per student, while the school districts in the decile with the highest graduation rates increased the local tax levy by $3 59 per student. The Resulting Fundins 110. children. 111. Many of these districts spend, per student, far below the State average, and have Gap According to Race/Ethnic Origin

Many low-wealth districts are also districts with high proportions o f minority school

graduation rates far below the State average. 112. Examples o f these districts are demonstrated in the following chart:

In addition to capping a school district's ability to levy taxes, the state also has capped

state aid; i n effect, school districts have been doubly capped. The tax cap limits districts' abilities to raise local funds through property taxation to make up for state aid deficiencies; meanwhile, the State also has capped state aid to those same districts. 114. Chapter 58 o f the Laws of 2011 made a significant change to the Education L a w ' s

methodology for funding school districts. It specifically linked the "allowable growth" o f state school aid to the growth o f personal income i n the state, i n effect capping such aid. 115. A s a result, i f according to its local needs a district determines that state aid and the

current level of property taxation does not sufficiently provide for the needs o f its children, its only choice is to raise property taxes. 116. Despite its facial equality, the tax cap i n application has a disproportionately adverse

impact on the ability o f poor districts to provide educational opportunity to their school children. O n a comparative basis, a wealthy district can raise significant funds within the tax cap. Poorer districts can only raise a relatively smaller amount, as a tax levy yields funding proportionate to the 21

tax base to which it applies. 117. For example, i n the current school year, the Elmira City School District levied its

maximum tax levy increase, according to the tax cap, of 2.83%. Based on its property wealth, that increase yielded an additional $ 124 per student. In comparison, the Great Neck U n i o n Free School District, which is comparable i n terms o f size o f enrollment, imposed a maximum increase, according to the tax cap, of 2.49%, yielding an additional $713 per student- 575% more per student than Elmira. 118. Similarly, the Unadilla Valley Central School District levied its maximum tax cap

increase o f 2.4%, yielding $103 more per student. In contrast, the Island Park U n i o n Free School District, which is comparable i n size o f enrollment, levied its maximum tax cap increase o f 1.97%, resulting i n an additional $559 per student-543% more per student than Unadilla. 119. Compounding this inequity is the state's failure to make good on its 2007

commitment to increase foundation aid. For example, as o f 2012-2013, Unadilla, with a C W R o f .358, is still owed $2,845,955 i n foundation aid. Elmira, w i t h a C W R o f .379, is owed $18,745,787. Conversely, Island Park and Great Neck, with C W R s o f 2.253 and 3.358, respectively, receive $318,097 and $ 1,762,568 more than the foundation aid formula requires. This is because N e w Y o r k utilizes a "save harmless" approach to distributing education aid. A save harmless" approach guarantees no district receives less funding than it received during the previous budget cycle. 120. Therefore, under the tax cap, poorer districts are significantly and unequally

disadvantaged i n their ability to make up for the state's failure to provide adequate funds. Wealthier districts, on the other hand, retain the ability to raise significant revenue as a result o f their much wealthier tax bases. This creates an inexorable cycle that prevents poorer districts from closing the

In light o f t h e tax cap's passage and the cap on state aid funding, school districts

across N e w Y o r k formulated budget proposals for the 2012-2013 school year incorporating significant cuts i n staffing and programs. 122. To alleviate the need for the deepest o f cuts, school boards considered proposing

budgets that included increased tax levies that would exceed the tax cap. Ultimately, however, an overwhelming majority o f schools did not propose such budgets. Indeed, as noted, of N e w Y o r k ' s 678 school districts, only 53 (7.8%) proposed budgets that would have exceeded the tax cap. 123. For example in M a y 2012, Brookhaven-Comsewogue U n i o n Free School District,

E l m i r a City School District, Floral Park-Bellerose U n i o n Free School District, Highland Central School District, M t . Sinai Union Free School District, N e w Paltz Central School District, Stillwater Central School District, Three Village Central School District, and Unadilla Valley Central School District all proposed budgets that would have exceeded the tax levy increase limit. 124. Although each of these districts obtained simple majority support for these proposed

budgets, each failed to obtain the tax cap's 60% supermajority requirement, as follows:

23

DISTRICT Brookhaven-Comsewogue U n i o n Free School District E l m i r a City School District Elmont U n i o n Free School District Floral Park-Bellerose U n i o n Free School District Highland Central School District M t . Sinai U n i o n Free School District N e w Paltz Central School District Stillwater Central School District Three Village Central School District Unadilla Valley Central School District

YES VOTES 58.8% 55% 56.7% 50.9% 51.1% 52.4% 59.4% 56.3% 56.4% 50.2%

125.

In the absence of the tax cap's supermajority requirement, each of these proposed

budgets would have been adopted but, under the tax cap, none were. Thus, as detailed below, these districts could not implement the tax levies proposed in their initial budgets. Brookhaven-Comsewogue 126. Union Free School District U n i o n Free School District has

State funding for the Brookhaven-Comsewogue

decreased by 7.4% since 2009-2010. Thirty-two percent (32%) o f its current budget comes from State aid. 127. According to the tax cap formula, the increased tax levy limit for the Brookhaven-

Comsewogue U n i o n Free School District for the 2012-2013 school year was 2.12%. 128. The Board o f Education ofthe Brookhaven-Comsewogue U n i o n Free School District

determined that a local tax levy increase of 4.5% would provide the appropriate funding to meet the

24

educational needs of the district's students for the 2012-2013 school year. 129. O n M a y 15,2012 voters in the Brookhaven-Comsewogue U n i o n Free School District

considered a budget with a 4.5% levy increase. 130. Even with the proposed 4.5% levy increase limit, the District's budget cut or reduced

and elementary schools, including the newspaper club, literary magazine, science club at two elementary schools, and the yearbook business manager position was also eliminated; h. supply and material budgets for curricula and classrooms were also cut i n order to

Comsewogue budget, it was defeated due to the failure to meet the tax cap's 60% supermajority requirement. 132. A t its June 4, 2012 meeting, the Brookhaven-Comsewogue Board of Education

approved of additional cuts in the amount of $858,000 to bring the tax levy increase down to 2.72%, the amount permitted by the tax cap.

25

133. school year: a.

This required additional, deeper cuts, changes and restructuring for the 2012-2013

district reconfiguration f r o m the community elementary school model to the

"Princeton Plan" model, restructuring the elementary schools and resulting i n increased transportation time for families, longer bus times for elementary students, and an increased need for transitional psychological services for students have a hard time with the transition to new schools; b. a total loss of thirty-one teaching positions (10% o f the district's teaching positions)

including eighteen excessed positions i n elementary, physical education, health, art, music, science, social studies, English and technology; eight teaching positions i n science, English, math, family and consumer science, and psychology were reduced to part time; and five elementary and special education positions are now vacant due to retirements, and these positions w i l l not be filled; c. d. e. cuts in professional development; increases i n K-12 class sizes; even further drastic reductions i n supply and material budgets for classrooms and

curricula, and as a result, Brookhaven-Comsewogue teachers are forced to buy computer software and classroom materials (pencils, calculators, etc.) with budgets as little as $100.00 for an entire class, for the entire school year; f. g. h. reduction of health classes; deeper cuts in academic intervention services; loss o f high school electives and advanced placement courses i n foreign languages

and academic core subjects; i. loss of both high school and elementary electives i n art, music, technology, and family

26

.

and consumer science, which not only deprives mainstream students o f much-needed coursework to better prepare themselves for a post-secondary education, but the lack o f art and music classes especially divests the district's most needy special education students, those i n self-contained classrooms, of much-needed social interactions with other student role models and mainstream students i n those electives; j. k. 1. organizations. 134. vote. Elmira City School 135. District O n June 19,2012,78% of voters supported the Brookhaven-Comsewogue budget rebudget cuts for special education curricula and classrooms; more drastic cuts i n athletic programs on the varsity and junior varsity level; and even more drastic cuts for after-school and extracurricular activities, clubs and

State funding for the Elmira City School District since 2009-2010 has decreased by

approximately 3%. Sixty-nine percent (69%>) o f its current budget comes from State aid. 136. In 2010-2011, Elmira had a .379 C W R and a 47% free and reduced price lunch

eligibility rate, as well as a 23 % minority student population. > 137. The Board ofEducation ofthe Elmira City School District determined that a local tax

levy increase of 5 > would provide the appropriate funding to meet the educational needs of the % district's students for the 2012-2013 school year. 138. According to the tax cap formula, the tax levy increase limit for the Elmira district

for the 2012-2013 school year was 2.83%. 139. Even with the proposed 5% tax levy increase, the district's budget cut numerous

and restructuring have been implemented: a. with the elimination o f the art, physical education, and music teachers, elementary

teachers are being required to incorporate those subjects into their general education curriculums; b. prior to the proposed cuts, 6
th th

grade subjects were taught by separate, certified

teachers. Under the cuts, 6 grade teachers w i l l be required to teach all core subjects, regardless o f their certifications, background, or training. 141. Though 55% of the district's voters supported the proposed Elmira budget on M a y

15, 2012, it was defeated due to the failure to meet the tax cap's 60%> supermajority requirement. 142. the voters. 143. The Elmira City School District serves as an above-average example of how the tax Ultimately, a revised budget, with an additional $720,000 i n cuts, was approved by

voters to reverse that trend i n the face o f reduced State aid Elmont 144. Union Free School District

State funding for the Elmont Union Free School District has decreased by 5.8% since

2009-2010 and, o f its current budget, 24.2%o comes from State aid. 145. The Board of Education of Elmont U n i o n Free School District determined that a local

tax levy increase o f 6.87%) would provide the appropriate funding to meet the educational needs of the district's students for the 2012-2013 school year. 146. According to the tax cap formula, the tax levy increase limit for the Elmont Union

Free School District for the 2012-2013 school year was 1.89%. 147. Even with the proposed 68 % tax levy increase, the Board o f Education was forced .7 >

to reduce its budget by $630,945. 148. O n M a y 15,2012, 56.7% of the district's voters supported the Elmont budget, but it

was defeated due to the failure to meet the tax cap's 6 % supermajority requirement. 0 > 149. The Elmont Board of Education then voted to make $970,959 in additional reductions

to propose a second budget with a 4.9% tax levy increase. To reach this reduced levy increase, the following budget cuts had to be made by the district for the 2012-2013 school year: a. b. c. replacements; d. e. deferral o f equipment replacement; and reduction o f supply and support services. elimination o f t h e District's summer school Academic Program; elimination of the District' s summer school Enrichment program; deferral o f needed capital improvements to school buildings, such as window

.

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150.

O n June 19,2012,62.5% of voters supported the Elmont Union Free School District

budget re-vote, which demanded a total of $ 1,601,904 i n budget reductions to meet the 4.9% levy increase limit. Floral Park-Bellerose 151. Union Free School District

State funding for the Floral Park-Bellerose Union Free School District has decreased

determined that a local tax levy increase o f 65 % would provide the appropriate funding to meet .8 > the educational needs o f the district's students for the 2012-2013 school year. 153. According to the tax cap formula, the tax levy increase limit for the Floral Park-

Bellerose district for the 2012-2013 school year was 4.71%. 154. O n M a y 15,2012 voters in the Floral Park-Bellerose Free School District considered

a budget with a 6.58%o tax levy increase. 155. Though 50.9% of the district's voters voted for the proposed budget, it was defeated

due to the failure to meet the tax cap's 6 % supermajority requirement. 0 ) 156. The Board of Education then proposed a revised budget, which required only a 2.65%

tax levy increase, which was within the tax cap's levy limit and, therefore, did not require a supermajority vote. 157. With this reduced levy increase, the district had to reduce its budget by $583,000,

requiring further budget cuts for the 2012-2013 school year: a. b. reduction of $100,000 i n capital improvements; reduction of $70,000 i n transportation services, including the elimination o f one (1)

U n i o n Free School District budget re-vote. Highland 159. Central School District

State funding for the Highland Central School District since 2009-2010 has decreased

by 5.1%o. O f its current budget, 30% comes from State aid. 160. The Board of Education of Highland Central School District determined that a local

tax levy increase of 5.12% would provide the appropriate funding to meet the educational needs o f the district's students for the 2012-2013 school year. 161. According to the tax cap formula, the tax levy increase limit for the Highland Central

School District for the 2012-2013 school year was only .87%. 162. O n M a y 15,2012 voters in the Highland Central School District considered a budget

with a 5.12% tax levy increase. 163. Though 51.1% of the district's voters supported the proposed budget, it was defeated

2 % for a second budget. Because this budget still exceeded Highland's .87% tax levy increase limit, a 60%) supermajority vote was still required. 165. A s a result o f t h e budget cuts made by the district to achieve the 2 > levy increase %

State funding for the M t . Sinai Union Free School District since 2009-2010 has

decreased by approximately 4.9%>. O f its current budget, 26%> comes f r o m State aid. 168. The Board of Education o f M t . Sinai Union Free School District determined that a

local tax levy increase limit of 4.76% would provide the appropriate funding to meet the educational needs o f the district's students for the 2012-2013 school year. 169. According to the tax cap formula, the tax levy increase limit for the M t . Sinai Union

Free School District for the 2012-2013 school year was 2.13%. 170. Even with the 4.76% levy increase limit, the district's proposed budget made the

following reductions i n spending and educational inputs: a. programs; b. c. cut $16,710 from all pupil activities; and cut additional programs such as second middle school athletic teams; approving the cut $221,530 from pupil curriculum instruction and supervision services and

it was defeated due to the failure to meet the tax cap's 60%» supermajority requirement. 172. A t its M a y 31, 2012 meeting, the M t . Sinai Board o f Education approved of

additional cuts i n the amount of $735,000 to bring the tax levy increase down to the tax cap's 2.13% limit. A s a result ofthe budget cuts made by the district, the above-mentioned reductions were made i n addition to the following deeper cuts, changes and restructuring o f educational inputs for the 20122013 School year: a. b. overall reduction o f funding to athletics, co-curricular activities and clubs by 15%; further reductions i n funding, including: $11,935 f o r junior varsity boys' golf;

school year, whereas all other middle and high school clubs and activities were given drastically reduced budgets for their programs, leading to reductions in student activity and the clubs' duration; 173. O n June 19, 2012, 66.9% of voters supportedbudget re-vote.

33

New Paltz Central School 174.

District

State funding for the N e w P a l t z Central School District since 2009-2010 has

decreased by 4.2%. O f its current budget, 24.8% comes from State aid. 175. The Board of Education of N e w Paltz Central School District determined that a local

tax levy increase of 44 > would provide the appropriate funding to meet the educational needs of .% the district's students for the 2012-2013 school year. 176. According to the tax cap formula, the tax levy increase limit for the N e w Paltz district

for the 2012-2013 school year was 3.4%. 177. Even with the proposed 44 o tax levy increase, the district's proposed budget cut or .%

State funding for the Stillwater Central School District since 2009-2010 has decreased

by 4.1%. O f its current budget, 45.9%o consists of State aid. 182. eligibility rate. 183. The Board of Education of Stillwater Central School District determined that a local In 2010-2011, Stillwater had a .661 C W R and a 17%. free and reduced price lunch

tax levy increase limit o f 3.08%) would provide the appropriate funding to meet the educational needs of the district' s students for the 2012-2013 school year, 184. According to the tax cap formula, the tax levy increase limit for the Stillwater district

for the 2012-2013 school year was-4.1%. 185. Because Stillwater's "cap" is negative, any increase in taxes above the 2011-2012

level would require a 60%o supermajority approval. 186. Even with the proposed 3.08%) tax levy increase limit, the District's budget cut or

underfunding i n low-wealth districts, despite the willingness of the Board of Education and o f local voters to reverse that trend i n the face o f stagnated or reduced State aid. Three Village Central School 189. District

State funding for the Three Village Central School District since 2009-2010 has

decreased by approximately 3 .3%. O f its current budget, 19.7% comes from State aid. 190. The Board o f Education o f Three Village Central School District determined that a

local tax levy increase limit of 4.48%> would provide the appropriate funding to meet the educational needs of the district's students for the 2012-2013 school year. 191. According to the tax cap formula, the tax levy increase limit for the Three Village

Central School District for the 2012-2013 school year was 2.19%. 192. Even with the 4.48% proposed levy increase, the District cut programs, increased

elimination o f sections o f art, health, music, music composition, physical education and special education; and reduction of teacher support and professional development f r o m the Literacy Coordinator; 193. Though 56.74% ofthe district's voters supported the proposedbudget, it was defeated

due to the failure to meet the tax cap's 60%> supermajority requirement. 194. A t its M a y 29, 2012 meeting, the Three Village Board o f Education proposed

additional cuts i n the amount o f $1.9 million to bring the tax levy limit down to 2.99%. A s a result ofthe budget cuts made by the district, the above-mentioned reductions were made i n addition to the following deeper cuts, changes and restructuring that w i l l be implemented for the 2012-2013 school year: a. the additional reduction o f 23.7 positions, bringing the total number o f positions

eliminated and reduced for the 2012-2013 school year to 109 F T E positions, 45,2 o f which were teaching positions and 63 .8 o f which were other positions; b. c. programs. 195. O n June 19, 2012, 68.7% o f voters supported the budget re-vote. Valley Central School District more courses were subject to class size increases; and further reductions in technology, special education, extracurricular and summer work

Unadilla 196.

State funding for the Unadilla Valley Central School District since 2009-2010 has

The Board o f Education of Unadilla Central School District determined that a local

tax levy increase o f 4.25% would provide the appropriate funding to meet the educational needs of the district's students for the 2012-2013 school year. 199. According to the tax cap formula, the tax levy increase limit for the Unadilla Valley

district for the 2012-2013 school year was 2.4%. 200. Even with the proposed 4.25%> tax levy increase limit, the District was forced to

eliminate a part time B O C E S Transportation Coordinator position. 201. Though 50.2%) of the District's voters supported the proposed budget, it was defeated

due to the failure to meet the tap cap's 60% supermajority requirement. 202. The Board o f Education then proposed cuts i n the amount o f $440,608 to bring the

proposed budget within the tax cap's tax levy increase limit of 2.4%, A s a result of the budget cuts made by the District, the above-mentioned reduction was made i n addition to the following deeper cuts, changes and restructuring for the 2012-2013 school year: a. b. c. elimination o f a part time B O C E S itinerant physical education teaching position; elimination of the summer swimming program; elimination inparticipationintheRegional B O C E S Summer School for students who

failed courses during the regular school year; d. transportation; e. elimination o f summer school for all students, with the exception o f seniors elimination o f district funds to provide summer school programs, including all

underfunding i n low-wealth districts, despite the effort and willingness o f local voters to reverse that trend i n the face o f stagnated state funding. 205. Due to the tax cap, none of the school districts listed i n paragraph 124 were able to

adopt the budget its school board deemed necessary to provide the educational opportunity its students needed, despite the majority support o f the District's qualified voters. 206. Under the tax cap, without any rational or compelling basis, plaintiffs have been

denied basic and fundamental constitutional rights and protections under the N e w Y o r k and United States Constitutions. 207. forum. N o prior application for the relief sought i n this action has been made i n any other

Article X I § 1 obligates the state to provide a sound basic education to all the school

children of this state. 209. The opportunity to receive a sound basic education so as to function as a productive

citizen should, under Article X I § 1, be deemed a fundamental right. 210. Article X I §1 also protects the right of school boards, parents and all other local

taxpayers to make basic decisions on funding and operating their public schools, and to provide enhanced educational opportunities to school children, beyond a minimum sound basic education, i f they choose to do so. 211. School children have a fundamental right to learn and benefit f r o m any enhanced

educational opportunities that are provided through local control o f education. This is a liberty interest protected by the fourteenth amendment to the United States Constitution. 212. A s education is currently funded in N e w Y o r k , some school districts spend

substantially more on education, per student, than other districts. 213. For instance, the wealthiest 10% of school districts i n the State spend an average o f

50% more per student than the poorest 10% o f school districts spend. 214. This inequality in funding limits education "inputs" and opportunities for students

i n certain districts, and particularly i n districts with high percentages of poor, minority and special needs students.

41

215.

This inequality is only permissible, under Article X I , § 1 , and under the equal

protection guarantees of the State and United States Constitutions, to the extent that school boards and voters are able to address their school children's educational needs through their local budgets. 216. The tax cap unconstitutionally deprives school children o f their rights under the

Education Article, and under the equal protection provisions o f the State and United States Constitution, by arbitrarily and unequally limiting the right and ability o f local school boards and school district taxpayers to address existing funding inequalities, and to provide enhanced educational opportunities, i f they choose to do so. 217. The purpose and effect o f the tax cap is to deprive school districts and district

taxpayers o f local control o f education funding by: a. arbitrarily setting a general cap on property tax increases, tied to the lesser of the rate

of inflation or 2%, effectively locking in and expanding existing funding disparities between districts based on the wealth o f those district; b. deterring local school boards and taxpayers from even seeking increases i n excess o f

the tax cap, by requiring a notice to be placed on school budget ballots negatively highlighting any effort to exceed the cap; c. by imposing an arbitrary requirement, unique to school budgets, mandating 60%

supermajority voter approval of an increased levy exceeding the cap; and d. cap and fail. 218. The tax cap thus has the apparent purpose and effect o f reducing or limiting local by imposing adverse budget consequences on school districts which try to exceed the

42

school district funding of education, and has the apparent purpose and effect of limiting local control over such funding. 219. The tax cap also has the apparent purpose and effect of perpetuating and expanding

existing disparities and inequalities in educational opportunities for school children, based on the taxable wealth o f their school district. 220. Prior to the tax cap's implementation, the courts determined that the only rational

basis for the state's unequal education financing system was a local school district's right to raise additional funds. This rational basis no longer exists under the tax cap. 221. Thus, under the tax cap, school children are effectively and arbitrarily classified and

denied educational opportunity based on the relative, taxable wealth of their school district, because poorer districts are effectively and arbitrarily deprived of the opportunity to raise education funding to the same degree as wealthier districts. 222. There is no compelling or rational basis for this classification, which has particularly

Under the Education Article, voters in each school district have the right to make their

43

own decisions with regard to their school district's local share o f school funding, which it raises through property taxes, and with respect to the educational opportunities they w i s h to provide to schoolchildren. 224. The intent and practical effect of the tax cap is to arbitrarily impair local control of

education funding decisions. 225. The tax cap thus limits the right o f local school boards and voters i n all school

districts, and especially i n poorer districts, to address deficiencies i n the educational inputs provided to students, to eliminate or reduce funding disparities, or to enhance the educational opportunities they wish to provide their school children, all i n violation of Article X I § 1 ofthe State Gonstitution.

A S A N D F O R A THIRD C A U S E OF A C T I O N : THE T A X CAP VIOLATES THE PLAINTIFFS'RIGHT TO E Q U A L P R O T E C T I O N O F L A W , B E C A U S E IT A R B I T R A R I L Y A N D DISCRIMINATORILY IMPAIRS THE RIGHT OF L O C A L SCHOOL B O A R D S A N D THEIR VOTERS TO PROVIDE E D U C A T I O N A L FUNDING. 226. L o c a l school boards and voters have the right, through taxation, to provide funding

for the education o f their school children. The right to provide an education to one's children is a liberty right protected by the fourteenth amendment to the United State Constitution. 227. The tax cap, without any rational or compelling basis, imposes an arbitrary limit on

school children. Conversely, voters i n low wealth districts are able to raise substantially less revenue and provide less educational opportunity for school children. 229. Effectively, the tax cap arbitrarily classifies and limits the ability o f districts and

voters to raise revenue and provide educational opportunity according to their existing taxable wealth, causing a discriminatory, adverse impact on the poorest districts and school children. 230. This arbitrary classification impairs the right of school boards and voters to provide

educational opportunity to school children, and violates their right to equal protection of law.

Under Article X I §1, parents o f school children and other school district voters have

the right, through their local school district, to provide educational opportunities to their school children. This right is also a protected "liberty" interest within the meaning o f t h e fourteenth amendment. 232. The tax cap, without rational or compelling basis, arbitrarily and unequally classifies

school boards and school district voters with respect to other, non-school district local government voters. 233. Under the tax cap, a non-school district local government can exceed the cap with a

vote o f its governing body, but a school district cannot exceed the cap unless it secures a 60% supermajority o f t h e qualified voters i n the district voting on the budget.

•

45'' •

234.

The voting power of governing bodies of non-school disttict local governments vary.

A town board for example could be comprised o f as few as 3 members, a town supervisor and two town councilmen, two of whom constitute a 60% supermajority and a simple majority. Overwhelmingly, the most common form o f town board in N e w Y o r k is a board with five members, a town supervisor and four town councilmen, three of whom constitute a 60% supermajority and a simple majority. Villages are governed by a mayor and four trustees. Some cities i n N e w York, including Auburn, have a governing body comprised of a mayor and four councilmen. Thus, the overwhelming majority of towns, villages, and some cities in N e w Y o r k can adopt a budget that exceeds the tax cap with a vote that satisfies the supermajority requirement mathematically, but in reality is nothing more than a mere simple majority. 235. Accordingly, while the voters of many towns, villages and some cities, acting through

their elected representatives, can adopt a budget exceeding the tax cap with a simple majority vote, the voters o f a school district cannot do so. Rather, they must achieve a 60%> supermaj ority to adopt a budget exceeding the tax cap. 236. The tax cap's 60% supermajority requirement, i n practice, does not apply equally to

all local government budgets. Rather, it arbitrarily and discriminatorily places a higher hurdle on school district voters who favor providing enhanced educational opportunities to school children, all i n violation of plaintiffs' rights to equal protection of law under the N e w Y o r k and United States Constitutions.

46

A S A N D FOR A FIFTH C A U S E OF ACTION: THE T A X CAP VIOLATES PLAINTIFFS' F U N D A M E N T A L RIGHT TO V O T E 237. The right to vote is a fundamental liberty right under both the United States and N e w

and by the First Amendment to the United States and Article 1, §8 o f the N e w Y o r k State Constitutions. 239. Under the tax cap, a school district voter who casts a ballot favoring increased

education funding that exceeds the tax cap has only two-thirds the voting power of a voter who votes against the proposal. 240. This undemocratically dilutes the voting power o f voters who favor a proposal to

exceed the tax cap and violates the principle o f one person, one vote. 241. A s such, without any rational or compelling basis, the tax cap's supermajority

The 60% supermaj ority requirement, without any rational or compelling basis, thus

classifies and treats unequally voters according to those who vote for and would benefit from increased education funding, as contrasted with those who are opposed to increased education funding. 244. The votes of those who favor exceeding the tax cap are given 2/3 the weight of those

who oppose exceeding the cap. 245. This arbitrary classification and disparate treatment deprives voters of their protected

Amendment and by Article 1 § 8 of N e w York's Constitution. 247. Voting is free expression protected by the First Amendment to the United States

Constitution and by Article 1 § 8 of the N e w Y o r k Constitution. 248. When a school district proposes a cap-exceeding budget, the tax cap requires the

school district to include i n the ballot for such budget the following statement: "Adoption of this budget requires a tax levy increase of _ _ _ _ _ which exceeds the statutory tax levy increase limit o f for this school year and therefore exceeds the state tax cap and must be approved by sixty

.

' ..

. , 48 •

percent of the qualified voters present and voting." 249. This notice is not viewpoint neutral and is meant to discourage voters f r o m approving

a proposal to exceed the tax cap. 250. Under the tax cap, i f a school district proposes a budget and it fails to obtain the

approval of the voters, that school district has the option o f resubmitting the same or a revised budget for a second vote or it may adopt a budget with a tax levy no greater than the tax that was levied for the prior school year. 251. Under the tax cap, i f the school district resubmits the budget and it again fails to

obtain approval, the school district then must adopt a budget with a tax levy no greater than the tax that was levied for the prior school year. 252. This effectively raised the stakes for a school district to propose a budget that would

exceed the cap, by imposing adverse funding consequences where a supermajority is not achieved. 253. the tax cap. 254. The tax cap thus places a chilling effect on the free expression and voting rights of This "poison p i l l " is intended to and has the effect o f discouraging attempts to exceed

taxpayers who wish to increase school funding above the tax cap. 255. The tax cap, without rational or compelling basis, is thus specifically designed to

discourage and interfere with voters' constitutional rights to free expression, by imposing adverse consequences on voters who favor school aid increases i f they fail to obtain a supermajority of voters to agree with them.

49

W H E R E F O R E , plaintiffs requests that a judgment be made as follows : 1. Declaring the tax cap, as it applies to public school district to be null and void, as it

R I C H A R D C. IANNUZZI, being duly sworn, deposes and says that he is President of New York State United Teachers, one of the plaintiffs in the above proceeding, deponent has read the foregoing Summons and Verified Complaint and knows the contents thereof; that the same is true to deponent's own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters deponent believes them to be true. The source of deponent's knowledge as to matters stated upon information and belief is a review of documents, conversations with members of N Y S U T who are employed by various New York State school districts, with research staff employed with N Y S U T , and with counsel for plaintiffs.

/y^day of February,

Sworn to before me this 2013.

Nprary Public - State of New York
105912/cwall41

JOANNAUMAN

\

NOTARY PUBLIC, STATE OF NEW YORK | Registration No. 01NA6010484 § Qualified in Albany County . i OnimiiisioiiExpffraJuly20,20 IT